Scottish Court of Session Decisions

Butler v. Grampian University Hospitals Nhs Trust [2002] ScotCS 142 (22nd May, 2002)

OUTER HOUSE, COURT OF SESSION
A1556/00	OPINION OF LORD MACFADYEN in the cause CAROLINE BUTLER Pursuer; against GRAMPIAN UNIVERSITY HOSPITALS NHS TRUST Defenders:   ________________

 

 

Pursuer: Ms Smart; Digby Brown, S.SC.,

Defenders: MacSporran; Scottish Health Service Central Legal Office

22 May 2002

Introduction

1. This is an action of damages in which the pursuer concludes for payment of £40,000 in respect of personal injuries which she claims to have suffered in an accident in the course of her employment as an outpatient assistant with the defenders' statutory predecessors at Aberdeen Royal Infirmary on or about 21 July 1997.
2. The defenders in their first plea-in-law contend that the pursuer's averments are irrelevant and lacking in specification, and that the action should therefore be dismissed. In their second plea-in-law they contend that the pursuer's averments of breach of statutory duty in articles 4 and 5 of the condescendence are irrelevant and should accordingly not be admitted to probation. The action was appointed to the procedure roll in respect of those pleas.

The Accident

3. The pursuer avers that her duties included the provision of assistance to patients who attended Outpatient Clinic A at Aberdeen Royal Infirmary, and in particular that patients who were wheelchair-bound often required assistance from the pursuer and from their own carers in using the toilet. She avers that at about 10.30 a.m. on the date of the accident she required to assist a disabled out-patient to use the toilet. The patient was wheelchair-bound and accompanied by a carer. The patient had a weakness of the left side due to a stroke, but was partially able to bear her own weight. There were two toilet cubicles in Clinic A adapted for disabled use by the provision of a pull-down bar on the wall and adjustment of the height of the toilet bowl. They each measured approximately five feet by seven feet.
4. The account of the accident contained in the pursuer's averments is in the following terms:

"The patient's carer entered the toilet first, and the pursuer pushed the patient's wheelchair into the cubicle. She pushed the wheelchair back against the door. There was around six inches of clearance between the wheelchair and the toilet bowl. As a result, the pursuer required to approach and lift the patient from the side. Due to the size of the cubicle, and the presence of the wheelchair, the patient and the carer, the pursuer had insufficient room to manoeuvre safely while lifting the patient. The pursuer lifted the patient to a standing position by placing her arms around the patient's waist. The carer supported the patient on the right side. The patient took some of her own weight by placing her right hand on a pull down wall bar. The pursuer started to turn the patient around, to sit her on the toilet. As she did so the patient ... let go of the wall bar. The pursuer required to bear the whole weight of the patient and was unable to turn her further or seat her on the toilet. She required to extend her spine suddenly to remain upright and to support the weight of the patient. She was pinned against the wall bar behind her by the weight of the patient. She was unable to move or to adjust her body position to relieve the strain on her back, due to the limited space between the toilet and the wall bar. As a result, the pursuer immediately felt pain in her back and left leg, and she sustained the loss, injury and damage hereinafter condescended upon."

Later it is averred:

"It was necessary for [the pursuer] to lift the patient from the side ..., as there was insufficient room in the cubicle to lift the patient face to face."

The Cases of Fault

5. In article 3 of the condescendence the pursuer avers that the accident was caused by fault and negligence on the part of the defenders, in failing to provide a safe place and safe system of work. Averments designed to demonstrate the foreseeability of injury are set out. Two particular duties are said to have been incumbent on the defenders. The first is a duty to instruct the pursuer not to use the disabled toilets in Clinic A for wheelchair-bound patients. The second duty is averred in the following terms:

"Separatim, it was the defenders' duty to take reasonable care to provide disabled toilets which could be used safely by outpatient assistants and patients by modifying the cubicles to form one larger cubicle".

6. In articles 4 and 5 of the condescendence the pursuer avers that the accident was also caused by breach of statutory duties incumbent on the defenders. Article 4 is concerned with the Workplace (Health, Safety and Welfare) Regulations 1992 ("the Workplace Regulations"). Reliance is placed in particular on the duty (imposed by regulation 5) to maintain the workplace in an efficient state; on the requirement (imposed by regulation 10) that every room where persons work should have inter alia sufficient floor area for purposes of health, safety and welfare; and on the requirement (imposed by regulation 11(1)) that every workstation shall be so arranged that it is suitable for any person likely to work at it and any work likely to be done there. In article 5 of the condescendence the pursuer avers that the accident was also caused by breach of duties incumbent on the defenders under regulation 4 of the Manual Handling Operations Regulations 1992.

The Issues Debated

7. Mr MacSporran for the defenders sought to have two parts of the pursuer's case excluded from probation, namely (1) the sentence beginning "Separatim, ..." quoted in paragraph [5] above, and (2) the whole of article 4 of the condescendence. No motion was made to exclude the averments in Article 5 from probation.

The Common Law Case

8. Mr MacSporran submitted that the sentence beginning "Separatim, ..." should be excluded from probation for two reasons. First, he submitted that in order to make a relevant case on the basis of the duty there formulated, it was necessary for the pursuer to aver that there were in fact no disabled toilets that could be used safely. No such averment appeared in the pursuer's pleadings. In answer 2 the defenders averred that larger disabled toilets were available in Clinic C, and the pursuer's response to that averment was to aver that:

"... the pursuer was never instructed to use the toilets at Clinic C to toilet all wheelchair bound patients".

That involved an implied acknowledgement that there were larger disabled toilets available in Clinic C. Once that was accepted, the absence of an averment that there were no disabled toilets that could be safely used was fatal to the relevancy of the averment of breach of the duty to provide safe disabled toilets by modifying the cubicles in Clinic A to provide one larger cubicle.

9. Miss Smart for the pursuer submitted that the essence of the pursuer's complaint, as it emerged from her averments, was that the cubicle in which the accident happened was not large enough to enable her to lift the patient face to face, that she therefore had to lift her from the side, and that when the patient ceased to bear any part of her own weight, the space available to the side of the patient was insufficient to enable the pursuer to adjust her position to bear the additional weight. It was relevant, in light of those circumstances, to aver that the defenders should have provided a safe disabled toilet by making one larger cubicle out of the two existing ones. It was averred that such modifications were carried out after the accident. So far as the reference to the disabled toilets in Clinic C was concerned, it was to be remembered that the pursuer's place of work was Clinic A, that there was no averment by the defenders about where Clinic C was in relation to Clinic A, and that the averment that the pursuer had never been instructed to use the toilets in Clinic C could not be construed as an admission that those toilets were in a practical sense available for patients in Clinic A.
10. I do not consider that the averment in question should be excluded from probation on this ground. I accept Miss Smart's analysis of the essence of the pursuer's case, although there are a number of respects in which it could have been more clearly expressed. I do not consider that the pursuer's response to the defenders' reference to the toilets in Clinic C can be regarded as an admission that those toilets were available for the use of the pursuer when dealing with a disabled patient attending Clinic A. The pursuer's case is that the disabled toilets in her place of work, Clinic A, were unsafe, and I do not consider that the relevancy of the case that they should have been modified to make them safe depends on the presence of an averment that there were no safe disabled toilets available. In my view the pursuer's averments are, in this respect, adequate to justify admitting the sentence in question to probation.
11. Mr MacSporran's second ground for excluding the sentence in question from probation was that there were no averments by the pursuer identifying what size of cubicle was necessary for safety, no reference to any form of industry standard, or recognised minimum dimensions, for disabled toilets, and no reference to practice in other hospitals. Miss Smart submitted that it was sufficient for the pursuer to say by reference to the events of the accident that the cubicle was too small for safe use, and that it was not in the circumstances necessary for the pursuer to specify what larger size the cubicle should have had, or refer to any standard by which the sufficiency of its size might be judged. In my view in the circumstances of this case the pursuer has, in this respect, averred enough to justify inquiry. I am therefore not prepared to exclude the sentence in question from probation on this ground either.

The Cases under the Workplace Regulations

1. Regulation 5(1)
2. Regulation 5(1) provides as follows:

"The workplace ... shall be maintained (including cleaned as appropriate) in an efficient state, in efficient working order and in good repair".

The pursuer's case is that the toilet cubicle was the pursuer's workplace within the meaning of regulation 5(1) and that:

"By reason of the inadequate dimensions of the toilet cubicle for the work which the pursuer was carrying out there, the pursuer's workplace was not maintained in an efficient state with regard to safety".

3. Mr MacSporran's submission was that regulation 5(1) was concerned with maintenance of the workplace. The pursuer's averments disclosed no lack of maintenance. The complaint was that the workplace, in the form in which it was provided, was not efficient with regard to safety. He contrasted the terms of regulation 5(1) with the (now repealed) provisions of section 29 of the Factories Act 1961, which required the employer to "make and keep safe" every place at which any person had to work.
4. Miss Smart drew attention to the very broad definition of "workplace" in regulation 2. She submitted that regulation 5(1), notwithstanding its terms, required the employer to secure that the employee had at all times a workplace which was efficient from the point of view of inter alia safety. She referred to part of the preamble to the Workplace Directive (89/654/EEC), which was in the following terms:

"Whereas the communications from the Commission on its programme concerning safety, hygiene and health at work provide for the adoption of a Directive designed to guarantee the safety and health of workers at the workplace".

In light of that underlying aim, regulation 5(1) could not be construed as concerned only with maintenance, so as to leave the worker with no remedy if the workplace, as provided, was not efficient. On the contrary, it should be construed as requiring the employer to secure that the workplace was in a continuing state of efficiency, with the result that a relevant case of breach of duty could be established by showing that at the relevant time the workplace was not in such a state as to be efficient from the point of view of safety.

5. In my view Miss Smart's approach to the construction of regulation 5(1) is to be preferred. Although the distinction which Mr MacSporran drew between provision and maintenance was one which was made in the former legislation, I do not consider that the fact that there has been a departure from that terminology in the Workplace Regulations can be held to mean that regulation 5(1) is to be construed narrowly as concerned only with maintenance and as affording no remedy where the lack of efficiency is inherent in the workplace as provided. It is in my view necessary to have regard to the purpose of the Workplace Regulations as disclosed in the Directive to which they give effect. The purpose, it seems to me, is to secure a continuing state of efficiency. It is therefore, in my view, a relevant averment of breach of regulation 5 to set out circumstances supporting the conclusion that at the time of the accident the workplace was not efficient from the point of view of safety. I therefore consider that the case based on regulation 5(1) falls to be admitted to probation.
6. Regulation 10(1)
7. Regulation 10(1) provides that:

"Every room where a person works shall have sufficient floor area, height and unoccupied space for purposes of health, safety and welfare."

The pursuer avers that:

"The floor area within the toilet cubicle was inadequate for the purpose of the pursuer's health, safety and welfare".

8. Mr MacSporran submitted first that the pursuer's averment that the floor area was "inadequate" did not address the statutory test, which was expressed in terms of "sufficient floor area". In my opinion there is no merit in that point. In my view in the context "inadequate" and "insufficient" can be regarded as synonyms.
9. The second point argued by Mr MacSporran was that regulation 10(1), properly construed, was concerned with matters such as the overcrowding of rooms in which work was done; and that it was not relevant to make a case of breach of that provision by reference to the activity being carried on there on a particular occasion and the number of people involved in it. Miss Smart drew attention to article 15.1 of the Workplace Directive, which regulation 10(1) was intended to reflect. It provided:

"Workrooms must have sufficient surface area, height and airspace to allow workers to perform their work without risk to their safety, health or well-being".

That, she submitted, made it clear that the sufficiency of floor area required to be judged by reference to the work being undertaken there.

10. In my view Miss Smart's submission on this point is clearly correct. I do not see how the sufficiency of floor area can be judged without reference to the work being undertaken. The point is in my view more clearly made in article 15.1 of the Directive than in regulation 10(1), but I do not consider that it would be appropriate to construe the regulation as yielding a different result. I am therefore satisfied that the case under regulation 10(1) ought to be admitted to probation.
11. Regulation 11(1)
12. Regulation 11(1) provides that:

"Every workstation shall be so arranged that it is suitable both for any person at work in the workplace who is likely to work at that workstation and for any work of the undertaking which is likely to be done there."

The pursuer's case under regulation 11(1) depends on the averment that the toilet cubicle was a workstation within the meaning of the regulation.

13. Mr MacSporran submitted that the cubicle was not a workstation. The expression "workstation" was not defined in the regulations, although "workplace" was (regulation 2(1)). Although the word "workstation" did not appear in the definition of "workplace" in regulation 2, it did appear in the corresponding definition of "workplace" in the Directive - "the place intended to house workstations ...". The term "workstation" also appeared in articles 15.2 and 21. It was evident from these that "workstation" was a narrower term than "workplace". The dictionary definition of "workstation" (OED) was:

	"1.	A location at which one stage in the manufacture or assembly of a product is carried out before it is moved on to the next stage.
	2.	A desk with a computer terminal and keyboard; the terminal itself."

A broader view was taken in Duncanson v South Ayrshire Council (31 July 1998, Lord Milligan, unreported on this point), where a nursery nurse, kneeling to place items in a cabinet, was conceded to be working at a workstation within the meaning of regulation 11(1). Although the point was conceded, Lord Milligan expressed agreement that the regulation was relevant to the circumstances of the case. Mr MacSporran, however, invited me to take the view that the toilet cubicle could not be regarded as a workstation.

14. Miss Smart submitted that regulation 11(2), which refers to workstations outdoors made it clear that the word was used in the regulation in a broader sense than the dictionary definition relied on by Mr MacSporran. She acknowledged that a workstation was something more particular than a workplace, and submitted that the essence of a workstation was an assembly or arrangement of plant, equipment or apparatus at a workplace related to the work to be done there. She also referred to the definition of "workstation" for the purpose of the Health and Safety (Display Screen Equipment) Regulations 1992 ("the Display Screen Equipment Regulations") contained in regulation 1(2)(e) of those regulations. That definition referred to "an assembly comprising display screen equipment ..., any optional accessories ..., any disk drive, telephone, modem, printer, document holder, work chair, work desk, work surface and other items peripheral to the display screen equipment, and the immediate work environment around the display screen equipment". Although that specific definition was clearly inapplicable in the context of regulation 11(1), it gave some support to the flavour of the formulation suggested. Miss Smart also relied on Duncanson. In her submission the toilet cubicle contained an arrangement or assembly of apparatus provided for the work the pursuer undertook in it, and was accordingly a workstation.
15. It is in my view clear that the toilet cubicle was at the material time the pursuer's workplace. It does not, however, follow that it was a workstation, because the Directive makes it clear that that is a narrower term. I do not consider that any real help can be obtained from Duncanson, because there the issue here contested was conceded. Nor do I consider that the dictionary definition can be regarded as conclusive. It seems to me to set out examples of workstations, without attempting to identify what makes a workstation a workstation. The definition in the Display Screen Equipment Regulations is of no direct application, but does in my view afford some support for the formulation suggested by Miss Smart. Although I am not persuaded that it would be right, in the absence of a statutory definition of "workstation", to attempt a comprehensive definition, I do consider that the word connotes a place at which there is gathered together or assembled or set up an item or items of equipment or apparatus for the purpose of enabling a certain category or certain categories of work to be done there.
16. Using that as a working definition, however, I do not consider that the pursuer has relevantly averred that the cubicle was a workstation. The apparatus or equipment gathered together in the cubicle was not placed there to enable the pursuer and other employees of the defenders to work there, but to enable disabled persons who were in attendance at the clinic to perform certain natural functions if they required to do so. That the pursuer's work included assisting such persons to make use of those facilities does not seem to me to convert a toilet into a workstation. I am therefore of opinion that the case based on regulation 11(1) is irrelevant, and should be excluded from probation.

 

Result

17. I shall accordingly sustain the defenders' second plea-in-law to the limited extent of excluding from probation the averments in article 4 of the condescendence beginning with the words "Regulation 11 thereof ..." at page 11B of the Closed Record (as amended) and ending with the words "... between the toilet and the wall" at page 11D. Quoad ultra I shall allow a proof before answer. I shall reserve meantime the expenses of the hearing on the procedure roll.